Index to Thirteenth Volume.
year provision was made by law, that personal property should be distributed according to the law regulating descents." In 1829, the previous law of descents was repealed and re-enacted, with provisos, (Duval's Compilation, 361,) that whenever an infant shall die with out issue, having title to any real estate of inheritance derived from the father, and if there be living any kindred on the side of the father of the infant, such estate shall pass to the father or the paternal kindred, without regard to the mother or maternal kindred, savin the mother's right of dower. And if the real estate of such infant was derived from the mother, the same should descend to the mother or maternal kindred, without regard to the father or paternal kindred: Held, That the act of 1828 adopting "the law regulating descents" as the rule for the distribution of personal estate, applies to any law regulating descents in force at the time that the right to the distribution becomes vested, (agreeing with Jones vs. Dexter, 8 Fla. 276.) Bushnell vs. Denison..
2. The provisos contained in the act of 1829, entitled "An Act Regulating Descents," being paragraphs 10 and 11 of section 1, are part of the law regulating descents, and furnish a rule for the distribution of the personal estate of an infant, derived from the father or the mother, as the case may be, it being the intent of the law that the personal estate should be distributed by the same rule that governs the descent of real estate.-(Overruling the decision in Jones vs. Dexter.) Ibid...
DISTRIBUTION OF PERSONAL ESTATES—
1. The provisos contained in the act of 1829, entitled "An Act Regulating Descents," being paragraphs 10 and 11 of section 1, are part of the law regulating descents, and furnish a rule for the distribution of the personal estate of an infant, derived from the father or the mother, as the case may be, it being the intent of the law that the personal estate should be distributed by the same rule that governs the descent of real estate.-(Overruling the decision in Jones vs. Dexter.) Bushnell vs. Denison,.
I. A statement in a bill for divorce that the complainant is, and has been for more than two years a resident of this State; that the parties were married at Jacksonville, in this State, in April 1862, "where the parties have ever since lived," is a full compliance, as to the pleadings, with the statute, which requires that "it shall appear that such applicant has resided in the State of Florida for the space of two years prior to the term of suc. application," and is a sufficient allegation of the time of marriage.-Burns vs. Burns... 369
Where a divorce is prayed on the ground that the defendant "is habitually intemperate," it is not necessary to specify more de
Index to Thirteenth Volume.
finitely the facts constituting "habitual intemperance," the charge
of itself implying that the defendant has a persistent habit of becom-
ing intoxicated from the use of strong drinks, and thus rendering
his presence in the marital relation disgusting and intolerable.—Ibid...... 369
3. Where the charge in a bill for divorce is that the defendant
"habitually indulges in, violent and ungovernable temper, and is ex
tremely cruel to his wife," and proceeds to specify that he uses
threatening, blasphemous and abusive language towards her, on
many occasions threatened her with fatal violence, and attempted
to carry his threats into execution, so that she has had to seek safety
in flight; and in an amended bill reiterating these charges, it is al-
leged that the defendant has put and continues to keep complain-
ant in fear of bodily harm from his violence and abuse: Held, That
the defendant having taken direct issue upon these statements, and
proceeded to a final hearing without requiring a more definite speci-
fication of facts, and the allegations appearing to be sufficiently defi-
nite to appraise the defendant of the nature of the facts to be proved
in order to enable him to prepare his defence, and it appearing that
the proofs fully substantiate the charge, a decree of divorce will be
sustained.-Ibid.
4. Where a decree of divorce has been passed, an appeal taken,
and supersedeas awarded, a court of equity should not award an
injunction to control the operation of the supersedeas.-Burns VS.
Sanderson and Burns,..
1. Under an indictment for homicide, where the prosecutor seeks
to introduce a dying declaration of the deceased in evidence, it
should be first shown to the satisfaction of the Court that at the
time the declarations were made the deceased not only evidently
considered himself in imminent danger, but that he evidently be-
lieved he was without hope of recovery. The circumstances under
which the statements were made must be shown, in order that the
Court may determine whether the statements should be given to the
jury as dying declarations. Dixon vs. State...
I. A defendant in ejectment may show twenty years possession
by himself, and those under whom he holds, adverse to the posses-
sion of the plaintiff and those under whom he claims, and if the
plaintiff has not been prevented from prosecuting his claim within
the twenty years by reason of some legal disability, he cannot re-
Doe er dem. Magruder et al. vs. Roe...
I. The object of the law creating a Board of Canvassers of elec-
tion returns is to ascertain from the returns the whole number of
Index to Thirteenth Volume.
votes cast, and to determine therefrom and certify the result of the
election. They are required by law to meet at a given day for this
purpose, and may adjourn from day to day until their duties are
completed; and in case legal returns are received by them at any
time before they complete the canvass, which would have been
counted if received by the day appointed by law, it is their duty to
include them in the canvass and certificate, and if they refuse, they
may be required by the writ of mandamus to complete the canvass
of all the returns received, and to certify the result according to law.
State ex rel. Bloxham vs. Board of State Canvassers.....
2. A peremptory mandamus will not be granted upon the return
of an alternative writ, unless the respondents may be required to do
all that is required by the alternative writ, and therefore where the
alternative writ required all the members of a Board of Canvassers
to canvass the returns and declare the result of an election, and after
that that one of them in another official capacity should record the
proceedings of the Board, and issue a certificate thereon, the per-
emptory writ was refused; for, until an officer shall have neglect-
ed or refused to perform a duty, he cannot be proceeded against by
this writ, and the officer who may be required to give a certificate
of the proceedings of a Board cannot be so required until the Board
shall have acted.—Ibid....
3. Pending the proceedings by mandamus against a Board of Can-
vassers, the Legislature repealed the law creating such Board, with-
out saving proceedings or duties required by lay to be performed by
them and uncompleted: Held, That the power of the Board to pro-
ceed was gone, and therefore the proceedings against them were
dismissed.-Ibid.
4. An injunction restraining a Board of Canvassers from proceed-
ing to canvass and certify the result of an election until the further
order of the Judge granting the same, where the statute requires the
Board to proceed by a certain day, is unauthorized.—Ibid...
(See Constitutional Law, 2.)
While, according to the strict rule of the common law, a free-
hold estate cannot be created to commence in futuro, and ante-
nuptial settlement by the husband of real property upon the wife,
in consideration of marriage, under which a freehold estate is to
vest in the wife upon the marriage, cannot operate as a feoffment
at common law, yet the instrument will operate as a covenant to
stand seized to the use of the person named, and a Court of Equity
will secure the wife in the enjoyment of such estate as passes under
the deed. Caulk vs. Fox and Wife....
2. While equity will construe a marriage settlement differently
Index to Thirteenth Volume.
from its terms, and vary their strict legal signification in many cases
in favor of the issue, upon the presumed intention of the parties to
provide for the issue, the same rule is not applicable where the con-
test is between collaterals, devisees under the will of the husband
on the one side, and the wife on the other.—Ibid......
3. In such a contest, if the words used in the preamble and prem-
ises of the deed operate to pass a fee simple, and the habendum of the
deed is inconsistent with the grant in the premises, inconsistent
with itself, and uncertain, and such a construction carries out what
in the opinion of the court was the real intention of the parties un-
der existing circumstances, the preamble and premises will control,
and an estate in fee simple passes.—Ibid......
4. When a party has two funds out of which he can satisfy his
debt, and a junior creditor has a lien upon one of the funds only,
the first creditor will, in equity, be compelled to resort to that fund
which the junior creditor cannot reach, so that the junior creditor
may avail himself of his only security, where it can be done without
injustice or injury to the debtor or creditor. Ritch vs. Eichelberger
et al.....
5. In March, 1861, A agreed to purchase of B certain lots in Tal-
lahassee, Florida, and improvements to be constructed thereon by
B. The sum agreed to be paid was an estimated value of the lots
and the actual cost of the improvements. After the execution of
this agreement, B removes to the State of Maryland, leaving an
agent in Florida. A remains in Florida, giving his personal atten-
tion to the work, having authority from B to make such additions
or alterations in the original plan as he desired. Additions and al-
terations were made by A. In July, 1865, (between which date
and the date of the completion of the improvements, communication
between Maryland and Florida was suspended by war,) B, in Mary-
land, received a letter from his agent in Florida, and sought A, then
in Maryland, for a settlement. A settlement was made, and a deed
subsequently executed for the property. In making such settle-
ment it was the expressed intention of neither party to suffer any
considerable loss, nor to surrender any right under the original con-
tract. Through a mistake in the construction of a sentence in the
letter of the agent, a final settlement was had, and a note given for a
much less sum than was due. This note B, with the consent of A,
transferred to C, in payment of a balance due by him (B) for the lots
which he (B) had purchased of C. The sentence erroneously con-
strued related to the cost of the alterations in the original plan made
by A, of which B was uninformed, and which, from the acts and
language of A, he was authorized to believe were inconsiderable,
while the proofs show they amounted to a considerable amount:
Held, That in such a case a court of equity should open the settle-
Index to Thirteenth Volume.
ment; that the true balance ascertained to be due was a balance of
purchase money due upon a sale of real estate; that while the es-
tate at law passed under the deed to the vendee yet in equity the
vendor retained a lien for the balance of the purchase money. La-
Trobe et al. vs. Hayward....
6. That B, having used the note of A, given him in the settlement,
to pay a balance due by him (B) to the party from whom he pur-
chased the lots, did not affect his (B's) lien for the balance of the
purchase money due him (B) by A, over and above the amount of
the note.-Ibid..........
Where there are equities arising from contract, or by operation
of law, by virtue of which the plaintiff is entitled to subject specific
property to sale, the courts of the State where the property is situa-
ted have jurisdiction, although none of the parties are residents of
the State where the property is. In such a case the jurisdiction at-
taches to the thing and can only be brought into action where the
thing is.-Ibid..
8. When the defendant answers a bill in equity, reserving the
questions of laws, and at the final hearing the court is of opinion that
there is not such a case made by bill as will warrant relief, the bill
should be dismissed. Judgment was entered in the county court in
1842, upon a promissory note made by defendant. No legal service
of the summons was made upon defendant; but an unauthorized
attorney entered an appearance for defendant at the return of the
summons, and defendant alleges that he had no knowledge of the
existence of the judgment until twenty years after it was entered;
after which the judgment was revived by scire facias, and execution
issued and levied upon defendant's property. Upon bill filed by de-
fendant in 1868, alleging these facts, and seeking to enjoin the en-
forcement of the judgment, but failing to show that the defendant
had a legal or equitable defence against the note sued on: Held, That
where the statute of limitations has intervened as to an action upon
the note, equity will not relieve against a judgment upon the ground
that the appearance of the attorney, upon which the judgment was
based, was unauthorized; the party must show, under such circum-
stances, fraud, or a meritorious defence as well as irregularity. Budd
vs. Gamble...
265
9. Courts of equity will not interfere by injunction to stay pro-
ceedings upon a writ of mandamus. County Commissioners Colum-
bia county vs. Bryson et al.
10. An injunction will not be granted if the party seeking it could,
by proper vigilance, have protected himself by the ordinary means
at law, or where the case in equity proceeds upon a defence equally
available at law.-Ibid...
|